Control over the Militia Is But One of Many Dangerous Powers Conferred on Congress

14 June 1788

MR. GEORGE MASON, after having read the clause which gives congress power to provide for arming, organizing, and disciplining the militia, and governing those in the actual service of the union— declared it as his firm belief, that it included the power of annexing punishments, and establishing necessary discipline; more especially as the construction of this, and every other part of the constitution, was left to those who were to govern. If so, he asked, if congress could not inflict the most ignominious punishments on the most worthy citizens of the community? Would freemen submit to such indignant treatment? It might be thought a strained construction, but it was no more than congress might put upon it. He thought such severities might be exercised on the militia, as would make them wish the use of militia to be utterly abolished; and assent to the establishment of a standing army. He then adverted to the representation, and said it was not sufficiently full to take into consideration the feelings and sentiments of all the citizens. He admitted that the nature of the country rendered a full representation impracticable. But he strongly urged that impracticability as a conclusive reason for granting no powers to the government, but such as were absolutely indispensable, and these to be most cautiously guarded. He then recurred to the power of impeachment. On this subject he entertained great suspicions. He apologized for being suspicious. He entered into the world with as few suspicions as any man. Young men, he said, were apt to think well of every one, till time and experience taught them better. After a treaty manifestly repugnant to the interests of the country was made, he asked, how were they to be punished? Suppose it had been made by the means of bribery and corruption. Suppose they had received 100,000 guineas, or louis d'ors, from a foreign nation, for consenting to a treaty; how was truth to be come at? Corruption and bribery of that kind had happened in other governments, and might in this. The house of representatives were to impeach them. The senators were to try themselves. If a majority of them were guilty of the crime, would they pronounce themselves guilty? Yet, says he, this is called responsibility. He wished to know in what court the members of government were to be tried for the commission of indictable offences, or injuries to individuals? He acknowledged himself to be no lawyer; but he thought he could see, that they could neither be tried in the state nor federal courts. The only means therefore of bringing them to punishment must be by a court appointed by law. And the law to punish them must also be made by themselves. By whom it is to be made, demanded he? By the very men who are interested in not indicting punishment. Yet, says he, though they make the law, and fix the punishment to be inflicted on themselves, it is called responsibility. If the senators do not agree to the law it will not be made, and thus they will escape altogether. [MR. Mason then animadverted on the ultimate controul of congress over elections; and was proceeding to prove that it was dangerous; when he was called to order by MR. NICHOLAS, for departing from the clause under consideration. A desultory conversation ensued, and MR. MASON was permitted to proceed. He was of opinion, that the controul over elections tended to destroy responsibility. He declared he had endeavoured to discover whether this power was really necessary, or what was the necessity of vesting it in the government; but that he could find no good reason for giving it. That the reasons suggested were, that in case the states should refuse or neglect to make regulations; or in case they should be prevented from making regulations by rebellion or invasion, then the general government should interpose.] MR. MASON then proceeded thus. If there be any other cases I would be glad to know them; for I know them not. If there be no other, why not confine them to these cases? But the power here, as in a thousand other instances, is without reason. I have no power, which any other person can take from me. I have no right of representation, if they can take it from me. I say therefore, that congress may by this claim, take away the right of representation; or render it nugatory, despicable, or oppressive. It is at least argumentative, that what may be done will be done, and that a favourite point will be done by those who can.

Suppose the state of Virginia should adopt such regulations as gentlemen say (and in which I accord with all my heart) and divide the state into ten districts. Suppose then that congress should order instead of this, that the elections should be held in the borough of Norfolk. Will any man say, that any man in Frederick or Berkeley county, would have any share in this representation, if the members were chosen in Norfolk? Nay, I might go further and say, that the elections for all the states might be had in New-York, and then we should have to go so far that the privilege would be lost altogether; for but few gentlemen could afford to go thither. Some of the best friends of the constitution have advocated that the elections should be in one place. This power is not necessary, and is capable of great abuse. It ought to be confined to the particular cases in which they assert it to be necessary. Whatever gentlemen may think of the opposition, I will never agree to give any power which I conceive to be dangerous.

I have doubts on another point. The fifth section, of the first article, provides, "that each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy." This enables them to keep the negotiations about treaties secret. Under this veil they may conceal any thing and every thing. Why not insert words that would exclude ambiguity and danger? The words of the confederation, that defective system, are, in this respect, more eligible. What are they? In the last clause of the ninth article it provides, "that congress shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy." The proceedings by that system are to be published monthly, except certain exceptions. These are proper guards. It is not so here. On the contrary they may conceal what they please. Instead of giving information, they will produce suspicion. You cannot discover the advocates of their iniquitous acts. This is an additional defect of responsibility. Neither house can adjourn without the consent of the other for more than three days. This is no parliamentary rule. It is untrodden ground, and appears to me liable to much exception.

The senators are chosen for six years. They are not recallable for those six years, and are re-eligible at the end of the six years. It stands on a very different ground from the confederation. By that system they were only elected for one year, might be recalled, and were incapable of re-election. But in the new constitution, instead being elected for one, they are chosen for six years. They cannot recalled in all that time for any misconduct, and at the end of that long term may again be elected. What will be the operation of this? Is it not probable, that those gentlemen who will be elected senators will fix themselves in the federal town, and become citizens of that town more than of our state? They will purchase a good seat in or near the town, and become inhabitants of that place. Will it not be then in the power of the senate to worry the house of representatives into any thing? They will be a continually existing body. They will exercise those machinations and contrivances, which the many have always to fear from the few. The house of representatives is the only check on the senate, with their enormous powers. But by that clause you give them the power of worrying the house of representatives into a compliance with any measure. The senators living at the spot will feel no inconvenience from long sessions, as they will vote themselves handsome pay, without incurring any additional expences. Your representatives are on a different ground, from their shorter continuance in office. The gentlemen from Georgia are six or seven hundred miles from home, and wish to go home.  The senate taking advantage of this, by stopping the other house from adjourning, may worry them into any thing. These are many doubts, and I think the provision not consistent with the usual parliamentary modes.

Source: (Rutland, The Papers of George Mason, Vol. III., p.1076-1079. (1970)).